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D ocke t 95-7279

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. e du/thir dc ir c uit_1996/58UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 95-7279

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ELWOOD SMALL, ERIC BAYNES, BRIAN ROSS, LAWRENCE ELLISON, ALI JAMAL ABDUL-QUDDUS,

v.

JOSEPH LEHMAN, Commissioner, PA Dept. of Correcti ons, ROBERT BITNER, Chief Hearing Examiner, J. HARVEY BELL, P ardons Case Specialist, J. DOE, Staff Attorney, WILLIAM J. LOV E, IRWIN S. OWENS, Protestant Chaplin, FATHER BECKER, Catholi c Chaplin, STERYL GROVE, Grievance Coordinator at SCI-Hun tingdon, in their individual and official capaciti es, Appellees.

Elwood Small; Eric Baynes, Appellants

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An Appeal from the United States District C ourt for the Middle District of Pennsylvania
D.C. No. 93-cv-01155

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Submitted Under Third Circuit LAR 34.1(a) Augus t 13, 1996

Before: SLOVITER, Chief Judge, COWEN, and ROSENN, Circuit Judges.

Opinion Filed October 22, 1996

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Elwood Small, AM-9183 Eric Baynes, AM-8345

SCI-HUNTINGDON
1100 Pike Street Huntingdon, PA 16654-1112

Pro SeThomas W. Corbett, Jr., Attorney General

Michael L. Harvey, Deputy Attorney General Calvin R. Koons, Sr., Deputy Attorney General John G. Knorr, III, Chief Deputy Attorney General, Chief, Litigation Section Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Counsel for Appellees.

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OPINION OF THE COURT

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ROSENN, Circuit Judge. This appeal by four present and former inmates of the Pennsylvania State Correctional Institution at Hunt ingdon (SCIHuntingdon) (collectively "Inmates"), presents a tr oublesome question relating to the provision of adequate faci lities for religious worship in a prison environment. The inm ates, Elwood Small, Eric Baynes, Brian Ross and Lawrence Ellison , members of the Sunni Muslim Brotherhood, sued prison officials under 42 U.S.C. § 1983 for allegedly violating their First a nd Fourteenth Amendment rights by providing only one Muslim worsh ip service in their prison for all Muslim sects. They filed suit pro se in
the United States District Court for the Middle Dis trict of Pennsylvania on July 30, 1993. In their briefs fil ed in the district court opposing the defendants' motion for summary judgment, the Inmates asserted for the first time a n alternative claim under the Religious Freedom Restoration Act o f 1993 (RFRA or Act), 42 U.S.C. § 2000bb. The district court, adopting the Report and Re commendation of a magistrate judge, found that the prison offici als did not violate the Inmates' First Amendment rights because the officials provided sufficient alternative means for Muslim wo rship. Further, the court found that the Inmates' RFRA cla im was untimely. It noted, however, that the Inmates' cla im did not implicate the Act. The Inmates filed a timely appe al to this court. We vacate the judgment and remand the case to the district court for further proceedings.

I.
The Inmates are members of the Sunni Muslim re ligion, one of five organized groups of practicing Muslims at S CIHuntingdon. The prison provides Jummah and Taleem services for all the approximately two hundred Muslim inmates. All Muslim sects are invited to attend services, and generally upon arrival at services in the chapel separate into groups. The Inmates requested separate space for relig ious services for Sunni Muslims, claiming that there are fundamen tal differences between the Muslim sects that prevent t hem fromworshiping together in one service. The Sunni Musl im sect at

SCI-Huntingdon approximates 75 in number and is one of the two largest at the institution. The Inmates claim that several empty rooms are available at the prison at times when the y wish to worship, that they are one of the larger Muslim sec ts in the installation, and that the institution could allow them to use one of the available rooms without excessive expens e or additional security. They contend that the differe nces between
the Sunni Muslim Brotherhood and the other Muslim s ects can be compared to the differences between Catholics and P rotestants, who are provided facilities for separate services a t Huntingdon. They also assert that Pennsylvania provides separat e facilities for Sunni Muslim services at other maximum security prisons. Prison officials denied the request, stating t hat the institution did not have the space or the resources to accommodate separate worship services. Further, th e officials asserted that they had consulted an expert in the M uslim faith who informed them that Muslim belief permits a comb ined worship
service of various sects.
The Inmates submitted numerous unsworn written statements by prisoners asserting that the teachings of the in stitution's current Muslim worship service leader are in direct contradiction to their faith. They assert that the Sunni Muslim religion mandates adherence to the four "Schools of Thought, " and that they may not be led in prayer by anyone who does no t subscribe to
these doctrines. The unsworn declarations stated: "If I choose to attend Jummah Services, I am required to practic e it under the teachings and practices ([e.g.,] language, Dress Co de and teachings of Iman Wallace Deem Muhammad) which are in direct conflict with the four (4) School's [sic] of Though t of the Sunni
Muslim Brotherhood." In their brief opposing the defendants' motio n for summary judgment, the Inmates asserted that there are sever al unused areas in the Huntingdon institution that could be u sed for services on Fridays without burdening the State, an d that the prison's security staff had been increased. Furthe r, they contend that the policy at SCI-Huntingdon violates RFRA. The district court granted summary judgment fo r the
defendants. The court maintained that the Inmates provided no support for their allegations, and thus accepted th e defendants'
version of the facts as true. It held that the def endants had a legitimate penological interest in denying the Inma tes space for a separate Sunni Muslim service, finding that the i nstitution lacked sufficient funds and staffing to provide the services. Further, the court noted that prison officials had consulted with an expert in the Muslim religion, who informed the officials that all Muslims are united as one regardless of "person al" designations such as Sunni Muslim. The court also held that the Inmates may not a ssert their claim under RFRA because they did not raise it in t heir pleadings. They sought reconsideration and moved t he court to vacate its judgment to permit them to amend their c omplaint and
add a claim under RFRA. The district court denied the motion. Nonetheless, the court concluded that the Inmates' claim did notimplicate the Act because the State did not burden their exercise

of religion.

II. The district court's grant of summary judgment is subject to plenary review. See Wheeler v. Towanda Area Sch . Dist., 950 F.2d 128, 129 (3d Cir. 1991). The threshold and critical question here is th e proper standard of review to be applied in addressing pris oners' constitutional claims. We also must appropriately consider the policy of judicial restraint regarding prisoner com plaints first set forth by the Supreme Court in Procunier v. Mart inez, 416 U.S. 396 (1974), partially overruled by Thornburgh v. Ab bott, 490 U.S. 401 (1989). There the Court recognized that "the p roblems of prisons in America are complex and intractable, and more to the point, they are not readily susceptible of resoluti on by decree." Id. at 404-05. Over a decade later, the Supreme Co urt not only reiterated these concerns, but pragmatically observ ed that where a state penal system is involved, as we have here, "federal
courts have . . . additional reason to accord defer ence to the appropriate prison authorities." Turner v. Safley, 482 U.S. 78, 85 (1986). Nonetheless, the Court also recognized the importance of the right to religious worship, even as to state or federal prisoners. The Court perceived that all prisoners must be afforded reasonable opportunities to "exercise the religious freedom guaranteed by the First and Fourteenth Amen dments." Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972). In Turner, 482 U.S. at 93, and O'Lone v. Estat e of Shabazz, 482 U.S. 342, 353 (1987), the Court held that a pri son regulation may validly impinge on an inmate's constitutional r ights if it is reasonably related to a legitimate penological inte rest. A court may look to several factors in making its determina tion including the connection between the prison regulation and th e legitimate governmental interest justifying the regulation, an d whether there are alternative means open for the prisoner t o exercise the right. Turner, 482 U.S. at 89-90. The court may a lso take into consideration the impact that accommodation of the constitutional right will have on prison resources and personnel. Id. at 90. In the instant case, the district court held t hat SCIHuntingdon's policy of permitting only one Muslim s ervice was reasonably related to a legitimate penological inte rest. It noted the institution's budgetary and space limitat ions, and the alternative Muslim services open to the Inmates. T hus, under the standards set forth in Turner and O'Lone, the court granted summary judgment for the defendants. Although the district court may have correctly applied the standards established in Turner and O'Lone, Congres s enacted the Religious Freedom Restoration Act in 1993 to legisl atively overrule the Supreme Court's standard of review of religious claims as set forth in those cases. Through RFRA, Congress intended to "restore the compelling interest test . . . and to guarantee its application in all cases where free e xercise of religion is substantially burdened." 42 U.S.C § 2000bb(b)(1)(Supp. 1996). Although the Inmates may not havementioned RFRA in their amended complaint, they did refer to it

in their opposition-brief to the defendants' motion for summary judgment and in their motion for a second amendment to their complaint. The Act was in force and as it was the applicable law, the district court was required to apply the c ompelling interest test to the facts of the instant case, par ticularly since it had been called to its attention. As Judg e Pollak aptly observed in Muslim v. Frame, 897 F. Supp. 215 , 216 (E.D. Pa. 1995), "RFRA is the law regardless of whether p arties mention it." We therefore hold that RFRA, being in effect at the time the district court heard this case, should have bee n considered by the district court before entering summary judgm ent.

III. RFRA provides, in pertinent part: (a) IN GENERAL.--Government shall not substantially burden a person's exercise o f religion
even if the burden results from a rule of general applicability, except as provided in subse ction (b). (b) EXCEPTION.--Government may substa ntially burden a person's exercise of religion onl y if it demonstrates that application of the burd en to the

person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000bb-1 (Supp. 1996). We agree with o ther courts of appeal that have interpreted RFRA to hold that the Act applies to the claims of prisoners. See, e.g., Werner v. McCo tter, 49 F.3d 1476, 1479 (10th Cir.), cert. denied, Thomas v. McC otter, 115 S. Ct. 2625 (1995); Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995). Thus, the first question to be determined unde r RFRA is whether the State has substantially burdened the In mate's exercise of religion; and, if so, whether the State can justify the imposition of that burden. Although the distri ct court did not believe it need reach the Inmates' RFRA claim, it apparently
decided to address the issue. The court concluded that the Inmates' claim did not implicate the Act. It adopt ed the magistrate judge's recommendation, which stated tha t the Inmates: have not alleged that the government has " burdened" their exercise of religion. Rather they [ complain] that the government has not taken affirmat ive steps to provide them with a place to worship. . .

. Accordingly, because the Act restricts onl y burdensplaced upon the exercise of religion, it is not applicable to this claim of failure to pro vide the plaintiffs with a worship service of their choice.

Thus, the court found that the Inmates had not prov en that theState has substantially burdened their exercise of religion under

the Act. In their objections to the magistrate judge's report, the Inmates claimed that their rights to free exercise of their religion have been substantially burdened by the de fendants because they are compelled to attend Jummah and Tal eem services that are led by the American Muslim Mission, which has different practices, teachings, dress codes, and Imams. The American Muslim Mission's spiritual leader is Imam Wallace D eem Muhammad, who they assert does not follow the four (4) School s of Thought
of the Sunni Muslim Brotherhood. The Inmates maint ain that the American Muslim Mission's "teachings and beliefs" a re "in direct contradiction" with their beliefs. In particular, they claim that their religion prohibits them from "being led in Jummah prayer by someone who does not follow one of the Fo ur Schools of Thought, which the American Muslims do not." Under RFRA, the Inmates are required to show t hat a
"substantial burden" to their free exercise of reli gion has
resulted from the State's actions. Goodall v. Staf ford County Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995), cert. d enied, 116 S. Ct. 706 (1996); Werner v. McCotter, 49 F.3d 1476, 1 480 (10th Cir.), cert. denied, 115 S. Ct. 2625 (1995). If th ey establish a substantial burden, then the burden of proof shifts to the State to show that it has a "compelling interest" in its actions and is furthering that interest by the "least restrictive means." Werner, 49 F.3d at 1480 n.2; Campos v. Coughlin, 85 4 F. Supp. 194, 206 (S.D.N.Y. 1994). The showing, however, required to prove a subs tantial

burden under RFRA seems to be unsettled. In Werner v. McCotter, the Tenth Circuit Court of Appeals provided the fol lowing summary of standards which seem to be applicable under RFRA : To exceed the "substantial burden" thresho ld, government regulation must significantly inhibit or constrain conduct or expression
that manifests some central tenet of a prisoner's individual beliefs; must meaningfully curtail a prisoner's ability to express adherence to his or her faith; or must deny a prisoner reasonable opportunit ies to engage in those activities that are fundamental to a prisoner's religion.

49 F.3d at 1480 (citations omitted); see also Bryan t v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (to survive summary j udgment under "substantial burden" test, plaintiff must prove fac ts that "show that the activities which he wishes to engage in ar e mandated by [his] religion.") In the instant case, the district court conclu ded that the
State had not burdened the Inmates' free exercise o f religion because the Inmates alleged only that the prison in stitution had not taken any affirmative action and had not provid ed them with the separate facilities that they requested and con sidered necessary for worship. We agree that the State doe s not have an affirmative duty to provide every prison inmate wit h the clergyperson or the service of his choice. Gittlemacker v. Prasse, 428

F.2d 1, 4-5 (3d Cir. 1970). However, an opportunit y to worship as a congregation by a substantial number of prison ers may be a basic religious experience and, therefore, a fundam ental exercise of religion by a bona fide religious group. The exercise of religion commonly involves group worship, and when the only option available for a prisoner is under the guidance of someone whose beliefs are significantly different from or obnoxious to his, the prisoner has been effectively den ied the opportunity for group worship and the result may amount to a substantial burden on the exercise of his religion. See SapaNaj in v. Gunter, 857 F.2d 463, 464-65 (8th Cir. 1988).

Weir v. Nix, 890 F. Supp. 769, 788 (S.D. Iowa 1995) (citations omitted). The failure to provide otherwise availab le facilities may therefore be, depending on whether it is compel led, as substantial a burden on that right as would the rem oval of pertinent facilities from actual congregational wor ship. It may meaningfully bar their ability to express adherence to their
faith. Here, the Inmates claimed to have significant ideological differences with other Muslim sects, and that the p rison's insistence on requiring all Muslims to worship coll ectively places a burden on their free exercise of religion. In particular, they urge that their faith "mandates" t hat they not be led in worship by a non-Sunni Muslim. On the ot her hand, the defendants assert that they have been informed by a reliable Muslim authority that the Inmates can comply with t heir religious faith if they worship in a combined service with ot her Muslims.
With this factual and material issue in serious dis pute, we do
not believe that it can be determined on a motion f or summary judgment, particularly with the compelling standard now prescribed by RFRA.
Even if the Inmates are able to establish that their religious right to worship has been substantially b urdened by the defendants' inaction, this is not the end of the ma tter. A remaining question is whether conditions and circum stances at the prison compel the combined worship service and whet her the action taken by the prison authorities is the least restri ctive means of furthering the alleged compelling governmental inte rest. Although the State may have a compelling interest i n operating an efficient and reasonably cost driven penal institut ion, the Inmates dispute whether the prison officials have t aken the least restrictive measures in furthering that interest. Prison officials may not take shelter in the mere words of "security" and "lack of funds"; they must substantiate the pe rmissibility of their conduct under the statute. The disputes o f material fact do not permit a trial court to resolve them on a motion for summary judgment.IV.

In summary, we hold that RFRA was the law of t he land when the Inmates filed their complaint and that it appli es to State and Federal prisons. The Inmates therefore were en titled to amend their complaint accordingly. We further hold that under RFRA the compelling interest standard applies to a claim charging state prison officials with substantially burdening the rights of prisoners to the free exercise of their religion. Therefore, the district court should not have decided genuine issu es of material fact by summary judgment when it concluded that RFRA was inapplicable to the Inmates' claims. Accordingly, the judgment
of the district court will be vacated and the case remanded to the district court for further proceedings consiste nt with this opinion.
Each side to bear its own costs.